More Adventures in Grounds for Dismissal Under the December 1, 2015 FRCP Amendments

The conventional wisdom about lawyers is that we don't really pay attention to rule amendments, and to an embarrassing extent that is true. A few weeks ago I saw a really fine lawyer making an argument based on language that had been deleted over 25 years ago. Oops. I just saw a filing this morning that reflected lack of awareness that the applicable local rule/standing order had been changed months ago. Double oops.

I took federal courts in my last quarter of law school the winter of 1990-1991, and I recall vividly my professor's promise that if we didn't know the December 1, 1990 amendments to the FRCPs - we would not pass the class. That had the effect of meaning that I knew the fairly significant changes to subpoena range that were enacted that winter when it seemed no one else did, but more importantly, it got me in the habit of checking rule changes, and eventually of becoming the guy people called to ask about rules and how to use or work around rules. It would be years before I found that that would be another one of those things about me - like considering organizing a source of entertainment - that just isn't normal. Well, maybe this case will change that.

As I have posted previously, last December 1 was a red letter day for FRCPs (for those like me that are interested in that sort of thing). Three of the most significant changes were:

elimination of the Forms, meaning that Form 18 was no longer the standard for sufficiency of allegations of patent infringement;

the time for dismissal for failure to serve (absent good cause) was shortened from 120 to 90 days; and

the standard for discovery was changed to require discovery to be "proportional" as well as relevant.

As readers know, many patent cases were filed in the run-up to those changes under the questionable belief that cases filed before the changes wouldn't be subject to them. I sometimes refer to those as "Thanksgiving specials" because I get asked - not infrequently - about the relative merit of those cases compared to other patent cases filed in the district. They are, generally speaking, different, and here's another example how.

A few days ago I posted on the dismissal of patent plaintiff Ruby Sands' Thanksgiving specials as to certain defendants for failure to sufficiently allege its claims of direct and indirect infringement. Today Judge Gilstrap dismissed another of Ruby Sands' cases filed on November 30 for failure to serve the defendant within 90 days or show good cause for its failure to serve. I noted months ago that in another case filed just before the rule change Judge Gilstrap made clear that he was applying the amended version of the rules to service issues, but in that case found good cause to extend the date. But in this case it wouldn't have mattered - the service was outside the 120 days as well.

I can't help but observe that from an organizational perspective, it would be really cool if another Ruby Sands case could generate a ruling as to whether certain discovery was "proportional" or not. But given that the plaintiff has now voluntarily dismissed four other cases and I just saw yet another judicial dismissal of a Ruby Sands Thanksgiving special, this time for failure to respond to a motion to dismiss at all, I have a feeling none will be around long enough to generate one.

Comments

More Adventures in Grounds for Dismissal Under the December 1, 2015 FRCP Amendments

The conventional wisdom about lawyers is that we don't really pay attention to rule amendments, and to an embarrassing extent that is true. A few weeks ago I saw a really fine lawyer making an argument based on language that had been deleted over 25 years ago. Oops. I just saw a filing this morning that reflected lack of awareness that the applicable local rule/standing order had been changed months ago. Double oops.

I took federal courts in my last quarter of law school the winter of 1990-1991, and I recall vividly my professor's promise that if we didn't know the December 1, 1990 amendments to the FRCPs - we would not pass the class. That had the effect of meaning that I knew the fairly significant changes to subpoena range that were enacted that winter when it seemed no one else did, but more importantly, it got me in the habit of checking rule changes, and eventually of becoming the guy people called to ask about rules and how to use or work around rules. It would be years before I found that that would be another one of those things about me - like considering organizing a source of entertainment - that just isn't normal. Well, maybe this case will change that.

As I have posted previously, last December 1 was a red letter day for FRCPs (for those like me that are interested in that sort of thing). Three of the most significant changes were:

elimination of the Forms, meaning that Form 18 was no longer the standard for sufficiency of allegations of patent infringement;

the time for dismissal for failure to serve (absent good cause) was shortened from 120 to 90 days; and

the standard for discovery was changed to require discovery to be "proportional" as well as relevant.

As readers know, many patent cases were filed in the run-up to those changes under the questionable belief that cases filed before the changes wouldn't be subject to them. I sometimes refer to those as "Thanksgiving specials" because I get asked - not infrequently - about the relative merit of those cases compared to other patent cases filed in the district. They are, generally speaking, different, and here's another example how.

A few days ago I posted on the dismissal of patent plaintiff Ruby Sands' Thanksgiving specials as to certain defendants for failure to sufficiently allege its claims of direct and indirect infringement. Today Judge Gilstrap dismissed another of Ruby Sands' cases filed on November 30 for failure to serve the defendant within 90 days or show good cause for its failure to serve. I noted months ago that in another case filed just before the rule change Judge Gilstrap made clear that he was applying the amended version of the rules to service issues, but in that case found good cause to extend the date. But in this case it wouldn't have mattered - the service was outside the 120 days as well.

I can't help but observe that from an organizational perspective, it would be really cool if another Ruby Sands case could generate a ruling as to whether certain discovery was "proportional" or not. But given that the plaintiff has now voluntarily dismissed four other cases and I just saw yet another judicial dismissal of a Ruby Sands Thanksgiving special, this time for failure to respond to a motion to dismiss at all, I have a feeling none will be around long enough to generate one.